Posted
by
Soulskill
on Saturday October 15, 2011 @02:59PM
from the stay-classy dept.

lee1 writes "After the police broke in to a Gizmodo editor's home and collected emails from computers found there as part of the investigation of the stolen 2010 iPhone prototype, the San Mateo District Attorney's office petitioned the court to withdraw the search warrant, because it violated a law intended to protect journalists. Nevertheless, the DA, rather than apologize for the illegal search and seizure, issued a critique of the seized emails, commenting that they were 'juvenile' and that 'It was obvious that they were angry with the company about not being invited to ... some big Apple event. ... this is like 15-year-old children talking.''"

I made a comment a few weeks ago about how judges who were Apple fans should be recused from patent cases because of the seemingly 'religious' lack of objectivity. Perhaps I didn't go quite far enough. It certainly takes some of the amazement out of how their getting the sale of Samsung products banned.

Gizmodo is part of Gawker Media which is *the* company for tabloid scumbag 'journalism', in my opinion (and many others) so yeah fuck them. Gawker sites have consistently proven to be unprofessional and immature. More companies need to ban them from events until they can act like journalists since that's what they pretend to be.

Coming any minute for the way they treated him and seizure of non related materials. Someone forgot to tell the DA that when an Apple employee leaves a prototype phone in a bar or resturant it's usually just to hype the newest Idevice.

At the time it had been once and it was assumed to be an accident. Now that it has happened again you have to wonder...

Indeed, at *most* twice.

People like to speculate, and the extreme secretiveness of Apple tends to let wild ideas like these grow.

But the facts are that there has never been any conclusive proof or even marginally believable solid evidence that either of these incidents are anything more than drunk yuppie Apple engineers in alcohol and cocaine induced stupors leaving their test phones places they shouldn't - bay area martini bars.

What are the chances of the government going to such lengths if an ordinary person gets robbed? The ordinary response from police is that's nice, we'll look into it if we have nothing better to do. The crimes they were alleging are not different than the crimes that would be applicable if this were to happen to an ordinary person instead of a powerful corporation.

And then, the chutzpah of the DA's to call out the Gizmodo editors (who may or may not have deserved it) after conducting an illegal search...

And then, the chutzpah of the DA's to call out the Gizmodo editors (who may or may not have deserved it) after conducting an illegal search...

Illegal according to who? The guy that wrote the article? [eff.org] Jason Chen had stolen property and the police are perfectly within their rights to search for that property, the reason some people are calling it "illegal" is because they believe journalist are above the law: [eff.org] "it violated California Penal Code section 1524(g)'s prohibition against the issuance of warrants for "unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.""

Gizmodo stopped being protected by any journalism shield the moment they actively participated in theft of private property. There also appears to be evidence of malicious motives on their part. I don't see journalism anywhere around this case.

Gizmodo stopped being protected by any journalism shield the moment they actively participated in theft of private property.

Just as a note here, purchasing a stolen good is not the same as being accessory to the theft. Usually, purchasing a stolen good is only punished by forfeiture of the item (without any refund). Yes, knowingly purchasing stolen goods (which Gizmodo clearly did) can be treated more harshly but it apparently has to have a value of more than $5,000 (convenient selling price you used there Gizmodo...)

But still, in order for the act to be accessory to the theft, the theft would have to be done at the request of the purchaser. As this was clearly a theft of opportunity, Gizmodo could have not participated in the theft, but rather only committed a separate crime. (And likely not even then, because the value wasn't high enough.)

Actually in CA I believe it is considered being an accessory if you know it was not obtained legitimately.

Eh... after reading an article online, I could see a DA cooking up a story for why it fits. Short of a non-competent lawyer, or strong case law, I don't see it holding up so well, since there are specific laws describing the criminal act that was committed (receiving stolen property). Also, theft of an item of about $500 value (as the value was when it was stolen) is probably not as strong as receiving stolen property of a value of $5000 (established by how much they paid for it.)

Again, I noted receipt of stolen goods, and possession of stolen goods. Both of those crimes are however not accessory to theft, and neither is Conspiracy to Purchase Stolen Goods.

In fact, the link you provided would be a good case to use in NY law against someone attempting to charge a receiver of stolen goods who was unconnected with the original theft with accessory to theft.

Gizmodo stopped being protected by any journalism shield the moment they actively participated in theft of private property.

Gizmodo was never journalism, it's part of the gawker network, which was created to produce ad impressions by producing misleading, often downright inaccurate content that people will argue about. Anyone posting any of their "articles" (which are just blog entries in disguise, since they contain no new information, just a little commentary on a link) to any other site is a Stupid McToolbag who should have read down to the bottom, followed the link there, and shared that.

and a search warrant was issued. The judge took into account the journalism angle and concluded (properly) that being a journalist doesn't make you immune to being prosecuted for theft, and being prosecuted for theft requires the same kinds of searches for stolen goods and other evidence of being complicit in a crime. They are free to argue that such evidence isn't admissible in a trial, but they are going to lose that fight (if they haven't already).

I don't think its theft, if you call the company, and try to return it, multiple times.... (they were trying to get apple to confirm it was one of their phones)

That's what they claim, but if they were really trying to return the phone why did the police have to get a search warrant? They could have just called the police and said they found a phone they would like to turn in.

Illegal according to the San Mateo DA's office [eff.org]. It would seem that the EFF and the DA's office are in agreement on that one.

EFF is interpreting the law incorrectly, I'm pretty sure having a press pass doesn't mean I get to steal your stuff and laugh at the police when they come looking for it.

Citation needed! Where do you see that anybody with a press pass stole anything at all from Apple? We know that Chen bought the phone from someone that said he found it in a bar and then contacted Apple to return it to them.

Illegal according to the San Mateo DA's office [eff.org]. It would seem that the EFF and the DA's office are in agreement on that one.

EFF is interpreting the law incorrectly, I'm pretty sure having a press pass doesn't mean I get to steal your stuff and laugh at the police when they come looking for it.

Citation needed! Where do you see that anybody with a press pass stole anything at all from Apple? We know that Chen bought the phone from someone that said he found it in a bar and then contacted Apple to return it to them.

If some guy showed up at my house with a prototype 2014 Mustang test mule and said "I'll sell it to you for $$$$$$" I can't buy it and tell the police to shove off just because I have a press pass, it's still stolen property.

No, but you can buy it and call Ford telling them you found their missing car. The part that counts is that you attempt to return it to the proper owner.

Why would the DA withdraw the warrant rather than just not exercise it unless the warrant was questionable? They wanted to kill it so if anything went to court they wouldn't have to waste resources defending the indefensible.

Citation needed! Where do you see that anybody with a press pass stole anything at all from Apple? We know that Chen bought the phone from someone that said he found it in a bar and then contacted Apple to return it to them.

and you're putting far too much trust in Jason Chen. If he really wanted to return the property he could have called the police himself, but he waited until the police showed up at his front door to get it. If you find something that you know does not belong to you you should try and return it and if you can not then you call the police and let them handle it. What was he going to do, just keep the phone indefinitely? The fact that the police had to come searching for it makes his whole story sound unbe

He contacted Apple himself rather than the police. That's fairly common when you find yourself in possession of someone elses property and you know how to contact them (that or stick it in a lost and found box). The burden of proof is on the accuser.

The crimes they were alleging are not different than the crimes that would be applicable if this were to happen to an ordinary person instead of a powerful corporation

Uh, yes they were. The potential damage caused by the phone getting out could have reached into the millions. That's the sort of thing where Motorola goes "Hold the launch of our next phone and put in a... uh.. whatever a Retina Display is!"

It's fun to poo poo Apple and all but before you start crying 'unfair treatment' you need to think about why anybody would pay 5k for a phone to begin with. Just the ad-views alone on a blog site were worth that.

You do know the CIA commits crimes daily against Europe/Asia, in helping USA corps win contracts and beat competitors right.

So?

Who cares if moto got the phone, it takes months and months to prep factories to make large quantities of orders.

All they'd have to do is announce it sooner.

Besides apple didnt invent the LCD, they just ordered it from LG.

They just ordered it from LG and took a big gamble in doing so. A competitor would pay quite a bit to.... why am I explaining that a stolen prototype of a highly anticipated product causes financial damage that exceeds $600 by a large margin? I really can't wait until this stupid flame war subsides.

So you think Apple shouldn't get special treatment (though really you can't prove they have) but you think some scumbag blogger should get special treatment and be above the law when it comes to purchasing stolen property?

Value of the device itself? Hardly.Value of the device on the open-market to others? 10k is what they were able to fetch for it from GizmodoValue of the device to the victim, Apple? The police hardly take that into consideration when a starving artist has their laptop stolen containing all the work they need to make a living.

Value of the victim in terms of its political clout? Ah, that makes sense.

If the crime that is being alleged is the same, and the real-world val

How much did Gizmodo make in extra revenue due to traffic to their site ? How much was the advertising worth when their pictures with their watermark were plastered all over the web and traditional media ? How much did Apple lose because their hand was tipped to their competitors allowing them to more quickly react ?

A billion is overdoing it but maybe a couple of hundred thousand, which is quite enough to warrant police intervention.

So the starving artist who had his laptop stolen can claim that he's out billions too because it was his lifes work and it would have sold billions?

Come on. It's a friggin tort. Proof of damages or it didn't happen.

-Rick

The worth of a manuscript of a starving artist is unclear, the worth of a prototype work by the worlds largest public company of a product that sells in the millions is indisputable. It is called industrial espionage [wikipedia.org].

"Information can make the difference between success and failure; if a trade secret is stolen, the competitive playing field is leveled or even tipped in favor of a competitor. Although a lot of information-gathering is accomplished legally through competitive intelligence, at times corporation

So a young playwrite that has his work stolen is not protected by the law, but a corporation that has produced more flops than successes that has a prototype that it released into the wild stolen is entitled to billions?

So a young playwrite that has his work stolen is not protected by the law, but a corporation that has produced more flops than successes that has a prototype that it released into the wild stolen is entitled to billions?

And people call the 99% crazy...

Did you read what I wrote at all ? The playwright (sic) in your scenario isn't protected because the value of his work is undetermined (and probably low, because he is starving after all.) Or rather he is protected but you wouldn't assign people to specifically look for the work because that would be mispriorization on the police's part. Turn it around: you wouldn't look for plans for some generic product lost by an obscure corporation if they are of little to no value, you would look for a screen play lost

So you would toss billions at a stolen Zune? Or a Newton? Or a HP Touchpad? Or any of the other thousands of busts that successful companies across the globe come out with every day? Just because that corporation has had previous success?

Or are you suggesting that once that starving artist has had one success, and becomes part of the upper reaches of society, that he deserves the same protection?

One set of protections for the rich, another for the poor? Sounds like a great plan!

I don't like the fact that the rich are provided with a different (better) form of justice than the general public, but I also don't think that's the issue here.

If one of the Coen Brothers got drunk and left a laptop at a bar, and someone took it and started posting their future screenplays online (or maybe just summaries or excerpts), you can bet your ass the cops would be busting in that person's door and hauling them off to jail. Any screenplay credited to the Coen Brothers has an automatic value of seve

I don't like the fact that the rich are provided with a different (better) form of justice than the general public, but I also don't think that's the issue here.

But it's reasonable that this is a much lower priority than something that's actually worth a bunch of money

Talk about some cognative dissonance going on here. You have been conditioned by years of living in our society by those with money that they, and their property is somehow more valuable than other individuals.

It should be the governments function to return stolen property, to the best of it's ability, with equal resource for all. It is up to the individual, or in this case corporation, to present the damages incured in civil court to acquire compensation from the theft. And in order to do so, they must be

Gizmodo isn't a competitor of Apple, and they didn't steal anything. The only people bound by trade secrets are people who have signed NDAs. Even though Gizmodo paid for a company's trade secret, it had already been lost/stolen/released anyway, so I don't see why they should be in any trouble to begin with. That's the risk you take when you choose to operate with a trade secret instead of under patent/copyright/trademark/etc.

An investigation is fine. Violating the rights of the Gizmodo editor in such a cavalier way with no remorse or accountability only furthers the public's disillusionment with law enforcement as being their to truly serve and protect The People. Being snarky about it afterwards only digs the hole deeper.

It also reminds me of the Skylarov case. Law enforcement was at the beck and call of Adobe, and acted as nothing more than a private security force. Ultimately, it was determined that Skylarov did nothing wrong, yet I don't see an apology from the FBI or Adobe on that either. Keep in mind, the man was held against his will in a foreign country for nearly 6 months for doing nothing wrong.

How about the mentally challenged work program at the FBI? That's about the only thing that can explain how an FBI agent all hopped up could seize every system in a datacenter causing extreme harm to such a large number of corporations that were innocent bystanders. Effectively, it was no different than arresting a whole neighborhood of citizens due to the behavior of one person in one house.

The problem is not the investigations. It is the actions of the investigators.

An investigation is fine. Violating the rights of the Gizmodo editor in such a cavalier way with no remorse or accountability only furthers the public's disillusionment with law enforcement as being their to truly serve and protect The People.

There was an obvious need for an investigation, that the police botched it is their problem. And yours if you're a US citizen.

The problem is not the investigations. It is the actions of the investigators.

I agree. I'm not commenting on the specifics of how the investigation was run, rather I'm reacting to the people who feel Apple got special treatment or feel this shouldn't have been investigated at all.

You mean the same Gizmodo that was trafficking in stolen goods? Just because he's a journalist doesn't mean he is except from the law. The search warrant was valid no matter how much the anti-Apple fanboi's may like to whine about it. The evidence was in relation to them making a deal to buy stolen goods. Not some 'freedom of speech'. Save your support for someone that earns it.

My support is not for any particular company in this case. It is for proper behavior by law enforcement.

If any of what you said was true, then why was the search warrant overturned? The search warrant was invalid and I am not an anti-Apple fanboi, or a fanboi of anything.

It was overturned because the law calls for a subpoena instead of a warrant in such cases. That does not change the fact that Gizmodo knowingly trafficked in stolen goods, and they perverted the intent of the law. The police erred in this case as the law is clear. That doesn't excuse what Gizmodo did.

It's sad that the anti-Apple crowd are using this to make Gizmodo into some sort of martyr in this when it was a shameful perversion of the law and it's intended purpose. This reduces the chances that any real journalist who has a real need of this protection will face a more difficult time. Gizmodo knowingly paid just below the minimum amount that would have made this a larger crime. (a felony for anything over $5000 dollars). They did so knowing exactly how to twist the law just for monetary gain via more hits to their webiste while relying on journalists protections to shield them while participating in a crime.

This is not something that I would consider worthy of protection and it's sad that a law with truly worthy goals was used in this way.

What is sad is that anybody that takes a contrary position that even seemingly supports Gizmodo, even as a side affect of supporting proper law, is seen automatically as an anti-Apple fanboi.

It is, "you are either with us or against us" mentality. That is sad.

Logical and rational discourse with you is obviously impossible because nothing I say is valid as long at does not directly support Apple.

Reminds me of the incident with Palin's personal email account. She got the full attention of a federal investigation to find the password-guesser, who was easily caught, convicted and jailed. Do you think that would happen if he had just gotten into the emails of some nobody? It wasn't even a government account - it was purely personal, and she was forbidden by state open-records law from using it for government business. Indeed, the whole point of him breaking in was to investigate previously untested rum

rather than apologize for the illegal search and seizure, issued a critique of the seized emails, commenting that they were 'juvenile'

Everyone does that.At a formal meeting with participants from multiple departments or with customers/vendors, everyone is professional. After the meeting while you are walking to the elevator or calling your immediate co-workers to duiscuss the details, you comment on everyone else was clueless, "those guys" are a bunch of fucking idiots, what where they thinking etc... Wha

Granted everyone makes those types of comments however the problem with this situation is that you have an official from an agency established to serve the tax payers deriding one of their constituents to a journalist on record.

There is such a thing as discretion and this DA just stick his foot in his mouth because this is going to be thrown back at him. Hopefully there will be consequences when the next elections come around and constituents finally decide that they cannot have their rights further eroded.

I don't. where I worked they stressed we could be under court order to produce any documents in our possession relating to a case and not to be stupid with email. I would never email something like that out. That would be stupid if it ever came out in court.

In the real world, a journalist is whomever the large, aggressive, not-so-bright, sometimes corrupt, uniformed men with shiny bits of metal on their chests that have lots and lots of guns, armored vehicles, helicopters, combat armor, tasers, pepper spray, snipers, and PMITA prisons to throw you in says they are...or are not.

The upside is that you might be able to dispute their decision later in a court of law...*if* you survive.

"I don't know if Apple is on the [REACT] steering committee," Stephen Wagstaffe told Yahoo! News [yahoo.com] when asked about a link between Apple and the Rapid Enforcement Allied Computer Team (REACT) Task Force that entered Jason Chen's home and seized four computers and two servers as evidence in a felony investigation. Documents revealed that Apple did indeed sit on REACT's steering committee [flickr.com], which provided 'direction and oversight' to the law enforcement agency.

Whether you agree with the reasoning behind it or not, and in spite of the fact that it was later withdrawn because it was illegal, the police served a search warrant on a Gizmodo editor's home, they didn't break in. Pretending those are the same is one of the things that makes having a conversation about truly illegal searches and seizures so difficult in the US.
If they have a search warrant you blame the judge that issued it, not the police who executed it.

It's a matter of perspective: If you disagreed with what the police did, it's "breaking in." If you agree, then it's serving a warrant. Also this tidbit:

It turns out that prosecutors concluded that neither Chen nor Gizmodo did anything wrong after all. Legally, that is. Speaking to CNET.com earlier this week, San Mateo County District Attorney Steven Wagstaffe said that there was not sufficient evidence to charge anyone associated with the tech site with "possession of stolen property" or "extortion."

There is a difference in the DA not having enough evidence to proceed further and the Gizmodo not doing anything wrong. There are many cases where the DA has to drop the case for lack of evidence.

It turns out that prosecutors concluded that neither Chen nor Gizmodo did anything wrong after all. Legally, that is. Speaking to CNET.com earlier this week, San Mateo County District Attorney Steven Wagstaffe said that there was not sufficient evidence to charge anyone associated with the tech site with "possession of stolen property" or "extortion."

There is a difference in the DA not having enough evidence to proceed further and the Gizmodo not doing anything wrong. There are many cases where the DA has

For the DA, saying "lack of evidence" is an easy way to avoid admitting that he was in the wrong. There is no doubt that the Gizmodo editors had the phone, and that they bought it. They knew how the seller got it. What possible more evidence is required?

Since when? So when mobsters had their cases dropped because witnesses mysteriously disappeared, the DAs in those cases were in the wrong? Gizmodo is still sticking to their story they purchased the story and not the phone. What may have been lacking is proof that Gizmodo knew they were purchasing the phone and would use the "purchasing a story" angle if caught.

Since when? So when mobsters had their cases dropped because witnesses mysteriously disappeared, the DAs in those cases were in the wrong?

A witness disappeared in this case? That's news to me and everyone else. As for "purchasing the story", how did they end up with the phone? The offence is "receiving stolen property", not "buying stolen property", and the only question is whether they knew it was stolen. Since Gizmodo published the whole story of how they got the phone, proving knowledge is not going t

Proving intent is the problem. Can the DA prove the Gizmodo knew that they were breaking the law and that they planned to cover their tracks by going with a "purchasing the story" defense. If Gizmodo had pre-planned it and the left evidence, it is far easier to convict.

Proving intent is the problem. Can the DA prove the Gizmodo knew that they were breaking the law and that they planned to cover their tracks by going with a "purchasing the story" defense. If Gizmodo had pre-planned it and the left evidence, it is far easier to convict.

As I mentioned before, don't let the facts get in the way of your argument. I already pointed out that the "purchasing the story" question was irrelevant because the crime is receiving stolen property. Intent isn't required. What needs to b

As I mentioned before, don't let the facts get in the way of your argument. I already pointed out that the "purchasing the story" question was irrelevant because the crime is receiving stolen property.

Don't let the real world get in the way of your fantasy. In the real world, every DA cannot pursue every single case to trial. From misdemeanors to felonies, most DAs look for plea deals rather than trials. A DA has to balance whether he or she can win a particular case as whether to pursue. The DA has many facts on his side; the problem is that Gizmodo can present a defense here that might make it difficult to win a conviction.

Intent isn't required. What needs to be proven are 3 facts: That the article was stolen, that the recipient knew it was stolen and that the recipient did receive the article. See intent in that list? See anything about buying the article? So, as I pointed out earlier, the "purchasing the story" defense is no defense.

The problem you don't seem to understand that having facts on your side do

If they have a search warrant you blame the judge that issued it, not the police who executed it.

Why should you blame the judge if the police/DA present him with faulty or incorrect evidence and justification for the search warrant? The information is given under oath, so there is no reason for the judge not to think the information is accurate. Really, what this comes down to is police acting as corporate enforcers, which is wrong and not what police are supposed to be doing. And for the record, I am very pro-police, especially for slashdot. However, it seems that recently police seem to keep shoo

The DA illegally seized these emails, right? And prior to that illegal seuzure they were the privately held information of Gizmodo, right? So... he only knows about them because the law was broken, and now he's spewing their contents all over the press?
If this doesn't violate some ethical standard, it should. I'd file an ethics complaint.

In the order withdrawing the search warrant [eff.org] the judge stipulated that the documents should be kept under seal. That is a completely acceptable limitation on free speech which is not an absolute 100% right when it conflicts with other rights (in this case the right to be "secure in their persons, houses, papers"). It seems to me that in breaking that stipulation the DA should be charged with contempt of court.

Seeing how using text speak seems to be standard operating procedure for high ranking goverment officials [arstechnica.com] . I would suspect "like 15-year-old children talking" would qualify you to hold a nice cushy post in goverment. Perhaps the goverment can look inward first before critiquing illegally seized evidence. Better yet why not just stop performing illegal search and seizures. Oh right, they are above the law, silly me.

...the house wouldn't have been raided. Are we really saying journalists should be exempt from such laws but the government should be held to it? If I was going to pursue a career in politics for power, I'd drop it to go into journalism. Chen/Gizmodo bought stolen property when he should've been suspicious enough to know better. Fucking plain and simple. $5000 of stolen property to increase my advertising revenue 10x that? And the law is on my side about it? What a deal. Sorry, I'm not buying the demagog

Your naïveté is almost endearing. Look, regardless of the merits (or otherwise) of this particular case, by that comment you exhibit an unreasoning and undeserved trust in the judiciary and law enforcement. The unfortunate truth is that illegal searches and seizures are made all the time on warrants filed in bad faith by police, or upon bad information. Or both. In this case, apparently, the warrant issued was later invalidate

We are all posting our opinions here, perhaps I should put that disclaimer in my signature. But wow, what hasty generalizations you've made there! They point out your own winded naïveté. You just spend more time pointing it out than I do. I bet you're short of breath! Do you live religiously by what the media reports? You're obviously entertained by stories of police searches, use of police force, etc. Does that mean they're all illegal? Did you get busted for a DMCA violation? Do you think

In my state, for example, it is no longer allowed to prosecute a policeman for any crime they commit against a citizen, unless actual malice can be shown. That was a well-intended law that has backfired and led to all kinds of police abuses. But they can still be prosecuted under the Federal statute, 18 USC 242.

Ha. That wouldn't be Illinois, would it? I know in that State the police cannot be taken to court for false arrest, and any number of other things.

It's funny, you would think that politicians would be very aware of the disease of unaccountability (most of them already being infected themselves) but apparently the idea of gun-toting cops with immunity from consequence being a problem never occurred to them.

The summary for this Slashdot article was so ignorant and biased that I actually registered just to comment on it.

cute.

"After the police broke in to a Gizmodo editor's home [...]"
They didn't "break in" -- they had a search warrant.

The search warrant was illegal. It had been procured under false pretenses and so it was no search warrant. The act was a "break in" even if the individual officers may not be able to be found culpable for it

"[...] the San Mateo District Attorney's office petitioned the court to withdraw the search warrant [...]"
The San Mateo District Attorney's Office didn't petition the court to withdraw the search warrant. The San Mateo District Attorney's Office petitioned the court to issue the search warrant.

Just because one thing is true does not mean that another is not true. In this case the DA suddenly realised that he had broken the law (or less charitably, realised he had been caught breaking the law) and, correctly, attempted to minimise the damage this would do by also petitioning to withdra